If you are an employer, you, like most other employers, probably ask job applicants whether they have had any criminal convictions. Most employers view a history of criminal conduct just as relevant as, say, a person’s education or job history. So, is there any legal problem asking about criminal convictions?
Maybe, according to the Equal Employment Opportunity Commission (EEOC). On April 25, 2012, the EEOC issued new enforcement guidance regarding the use of arrest or conviction records in employment decisions. The EEOC’s new guidelines are rooted in the position that such use of criminal records has a disparate impact on certain minorities. In other words, the EEOC finds that a seemingly neutral criminal background check policy, when applied to all job applicants and/or employees, will disproportionately screen out individuals based upon race or national origin, thus having a disproportionate effect on some minorities. In the EEOC’s view, this disparate impact may violate Title VII.
The EEOC notes that arrest and incarceration rates are particularly high for African American and Hispanic men, and cites statistical studies predicting that 1 in 17 white men will likely serve time in prison during their lifetime, while the numbers are 1 in 6 for Hispanic men, and 1 in 3 for African American men. Although not expressly discussed, the EEOC’s Guidance is based almost exclusively on statistical evidence regarding minority males. Other studies – not discussed by the EEOC -- indicate that while arrest and incarceration rates for minority females are higher than for white females, the rates are not nearly as high or disparate as those reported for minority men. Perhaps the EEOC’s silence on minority females indicates a belief that a minority female may find making a disparate impact claim more difficult.
In order to avoid liability under Title VII, the EEOC recommends that employers conducting criminal background checks take the following steps:
1. Treat all applicants with comparable criminal records equally.
Any policy requiring the exclusion of individuals based upon past criminal conduct must be applied equally without consideration of race or ethnic origin. Be consistent.
2. Avoid blanket no-hire policies.
Policies that eliminate all applicants with any criminal conviction are overbroad and may result in a charge alleging a violation of Title VII. Employers should weigh the following: (a) the nature and gravity of the offense; (b) the amount of time that has passed since the offense or completion of the sentence; and (c) the nature of the job held or sought.
In addition, the EEOC encourages employers to conduct an individualized assessment to include (a) informing the individual that he may be excluded based upon his criminal history; (b) providing an opportunity for the individual to demonstrate that exclusion should not apply under his particular circumstances; and (c) considering whether the individual’s additional information demonstrates that an exception to the policy is appropriate.
3. Ensure that the specific offense used to bar consideration for employment is job
related and consistent with business necessity.
Narrowly tailor the policy to identify criminal conduct with a clear nexus to the job position at issue, and document the justification for the policy and procedures.
4. Avoid the use of arrest records when making employment decisions.
Because an individual is presumed innocent until proven guilty, an arrest record alone does not prove that criminal conduct has occurred. Accordingly, an exclusion based on an arrest record alone “is not job related and consistent with business necessity.” Nevertheless, the EEOC recognizes that an arrest record “may, in some circumstances, trigger an inquiry into whether the conduct underlying the arrest justifies an adverse employment action,” and again encourages an individualized assessment.
5. Validate the criminal conduct exclusion for each relevant position.
The EEOC instructs employers to validate any criminal conduct exclusion for a particular position. Notably, however, the EEOC recognizes that currently, “[a]lthough there may be social science studies that assess whether convictions are linked to future behaviors, traits, or conduct with workplace ramifications, and thereby provide a framework for validating some employment exclusions, such studies are rare. . . .” Where the use of formal validation is not possible or readily available, employers are encouraged to use selection/exclusion procedures that are as job related as possible and that will eliminate disparate impact.
So, can an employer avoid potential liability by simply not conducting criminal background checks? While forgoing such investigations would avoid scrutiny of this aspect of the employer’s hiring practices under Title VII, the employer would increase its risk of hiring persons who may commit crimes against the employer, other employees, or customers, and thereby expose the employer to claims from the crime victims. The better course: perform a criminal background check that is reasonable, job related, and consistent.
Of particular note is the EEOC’s position that because Title VII preempts state and local laws, the fact that an employer adopts a particular policy in order to comply with a state or local law is no defense, should the EEOC find the policy is neither job related nor consistent with business necessity. However, the adoption of a policy based upon a federal law or regulation is a defense to Title VII liability, as long as the employer has not exceeded the mandates of that law or regulation.